Posts from the DWI Category

Off-duty NYPD cop Joseph McClean hit William Hemphill with an SUV in Staten Island in 2013. He was convicted of homicide and leaving the scene. Image: WABC via Staten Island Advance

An off-duty NYPD officer was found guilty at trial last week for the hit-and-run killing of a pedestrian in the Mariners Harbor section of Staten Island.

William Hemphill, 51, was crossing Richmond Terrace, near Simonson Avenue, to get food before work at about 6:18 a.m. on October 4, 2013, when Joseph McClean struck him at a high rate of speed with a Ford SUV, the Advance reported.

Prosecutors said the collision severed Hemphill’s spinal cord, broke 14 of his ribs and both of his legs. McClean, who according to prosecutors had spent the previous night drinking at a bar, left the scene.

The crash occurred six hours after McClean ended his shift at the 121st Precinct, the Daily News reported.

“The guy hit him so hard he landed a block away. He hit him and he kept on going,” the bodega’s owner told the News.

McClean was charged with felony leaving the scene, homicide, and driving while ability impaired. In court, McClean’s attorney put the victim on trial, arguing that Hemphill had prescription drugs and cocaine in his system, and therefore caused the collision.

“How do we know whether the alcohol made any difference? It wouldn’t have,” said [Attorney Howard] Tanner, who addressed jurors for more than two hours. “It is the greatest fear of all of us. Someone running out into the street and we have no chance [to avoid hitting them]. It’s not criminal. … This was a tragic accident. All the stars aligned in the wrong way.”

Giovani Romano was charged with failing to yield for fatally striking Alfiya Djuraeva at 20th Avenue and Bath Avenue in Brooklyn. He was not charged for taking her life. Image: Google Maps

In four separate crashes since Thursday, at least two people have been struck and killed while walking, and two others were critically injured.

Last Thursday afternoon Giovani Romano hit 56-year-old Alfiya Djuraeva with a Buick while turning left at 20th Avenue and Bath Avenue in Bath Beach, according to the Daily News and WNBC. Djuraeva suffered trauma to her head and torso and died at Lutheran Hospital.

Romano, 74, was issued a desk appearance ticket for failing to yield, but was not charged for the act of killing Alfiya Djuraeva. The crash occurred in the 62nd Precinct and in the City Council district represented by Vincent Gentile.

Early Saturday morning, a BMW driver going the wrong way on 181st Street near Amsterdam Avenue in Washington Heights hit two people and a pickup truck, then fled the scene, the Daily News reported. A male pedestrian, 46, was killed. The second victim, a 46-year-old woman, was hospitalized. The deceased victim’s name was being withheld pending family notification, NYPD told Streetsblog.

NYPD said Dennis Forceri, 57, drove a tractor-trailer into 34-year-old Anna Rodriguez while making a right turn at 56th Road and 48th Street at around 8:45 a.m. Rodriguez suffered trauma to her head and body and died at Elmhurst Hospital.

WCBS reported that Rodriguez lived in Ridgewood and was a single mother with a young son.

A motorist, Eddie Ewald, told WCBS the area where the crash occurred, in a warehouse district, is “extremely chaotic” during morning hours. “Everybody’s speeding through here,” Ewald said.

“The car is not really paying attention to you, making turns when you’re right next to them, pulling into parking spots,” said cyclist Daniel Salvatierra. “It’s terrifying.”

DOT’s Vision Zero data map shows crashes are common on 56th Road, with many injuries to motor vehicle occupants, a sign of high-speed collisions.

Police initially said Forceri was charged with driving with a revoked license. He was later charged with first degree vehicular manslaughter, criminally negligent homicide, driving under the influence of drugs, aggravated unlicensed operation, failure to yield, and careless driving, according to Gothamist and AMNY. Forceri’s case did not turn up in a search of online court records early this afternoon.

NYPD has not yet released the name of the company that owns the truck Forceri was driving. Serious crashes caused by unlicensed or impaired commercial drivers are not unusual in NYC. There should be sanctions for companies that allow such drivers behind the wheel.

This morning Public Advocate Letitia James issued a statement on the most recent series of pedestrian and cyclist deaths at the hands of reckless drivers:

Over the past eleven days, five pedestrians and one cyclist were killed by motor vehicles in New York City. We must continue to work together to achieve Vision Zero, which requires good street design, education, and enforcement. Too many innocent New Yorkers are dying on our City’s streets and sidewalks, and we have a moral and civil responsibility to use every tool in our arsenal to make our City safer.

Queens District Attorney Richard Brown is known for pleading down cases against drivers who kill people, rather than taking them to trial, even when defendants are accused of committing high-level felonies like aggravated vehicular homicide and manslaughter. Streetsblog will follow the case against Forceri as it progresses.

Ignition interlock use in NYC. State courts began ordering installation of the devices in August, 2010. Image via state comptroller’s office

Ignition interlock devices, intended to prevent cars from starting if alcohol is detected in a driver’s breath, can be an effective tool to curb drunk driving. Governor Andrew Cuomo’s DMV rule reforms include an interlock requirement for drivers who are issued restricted licenses after multiple DWI convictions. In 2009 the state legislature passed Leandra’s Law, which among other things mandates six months of interlock use for drivers convicted of DWI.

But an audit released Thursday by State Comptroller Tom DiNapoli found that the majority of people who are supposed to be using ignition interlocks aren’t installing them. DiNapoli says the compliance rate is 5 percent in New York City and just 26 percent statewide.

DiNapoli’s office says 2,166 drivers in NYC were ordered to use interlocks from 2010 to 2014, and of those, only 111 devices were installed. “[T]here was little evidence that NYC Probation routinely followed-up with offenders to determine if they owned vehicles in which devices should be installed, or did not drive motor vehicles during the periods of their restrictions,” according to DiNapoli’s press release.

City probation officers are supposed to check DMV records for license sanctions and vehicle ownership information, to determine which vehicles should have interlocks, according to DiNapoli’s office. Out of a sample of 100 offenders, including 60 repeat offenders, the audit found that in 70 cases no initial DMV check was performed, and 32 offenders were not checked for compliance throughout their entire probation term. Of 22 “high risk” offenders who should have been subject to monthly compliance checks, auditors found evidence of monthly checks in just one case.

The audit also found that NYC drivers circumvent the interlock restriction by driving vehicles owned by other people. “Auditors further found NYC Probation doesn’t always notify the courts or district attorneys when DWI offenders under its supervision are trying to drive while impaired or drunk,” DiNapoli’s office said.

A recidivist drunk driver who was charged with 10 felonies for killing a Queens pedestrian pled guilty to two low-level felony counts in a deal with District Attorney Richard Brown.

Queens DA Richard Brown

At around 4:30 a.m. on July 5, 2014, Romulo Mejia drove a Ford compact into a man who was walking at Roosevelt Avenue and 92nd Street in Jackson Heights, according to the Times Ledger.

Mejia then allegedly veered into oncoming traffic and crashed into an empty, parked car, according to the NYPD.

Police said Mejia refused to take a Breathalyzer or other sobriety field tests.

The victim died at the scene. His name and age were not reported.

Mejia, who was 42 at the time of the crash, is from Bradenton, Florida. Police told the Times Ledger he had a prior DWI conviction within the last 10 years. Court records indicate Mejia has been in jail since his arrest.

Brown charged Mejia with three counts of aggravated vehicular homicide, four counts of vehicular manslaughter, one count of criminally negligent homicide, one count of aggravated DWI, one felony count of operating a motor vehicle with a suspended license, one misdemeanor count of operating a motor vehicle while intoxicated, and one misdemeanor count of operating a motor vehicle while under the influence of alcohol or drugs.

The top charge against Mejia was aggravated vehicular homicide with a blood alcohol content of .18 or more, a class B “non-violent” felony with sentences ranging from 1 to 25 years in jail. According to court records, this week Brown allowed Mejia to plead to one count of criminally negligent homicide and one count of aggravated DWI, both class E felonies.

Class E is the lowest felony category in New York State, with a maximum penalty of four years in jail and a minimum of probation with no jail time.

In the relatively rare instances when he brings a case, Richard Brown has a history of negotiating lenient sentences for drivers who kill people, even when they were driving drunk. Mejia is scheduled to be sentenced in October.

The office of Brooklyn District Attorney Ken Thompson won’t talk about reported developments in the case of a defendant who avoided a homicide charge after killing a pedestrian while driving drunk.

Roxana Gomez

Eric Nesmith hit Roxana Gomez at Flatbush Avenue and St. Marks Avenue with a BMW sedan just after midnight on July 5, 2013, according to witness accounts and the Post. Gomez, 27, suffered massive head injuries. She died on July 10.

The Post reported that Nesmith, then 25, of Newark, had a BAC of .126 — the legal limit for driving is .08 — and ”admitted to cops he had consumed up to six Coronas” while celebrating Independence Day before the crash. FDNY first responders said he was speeding. But Nesmith was not charged with homicide by former Brooklyn DA Charles Hynes or Thompson, who unseated Hynes in last year’s election.

Nesmith pled guilty to operating a motor vehicle while intoxicated, an unclassified misdemeanor that carries a maximum sentence of a year in jail, three years probation, and a $1,000 fine. On April 8, Judge Raymond Rodriguez sentenced him to three years probation and a $500 fine, with no jail time, according to court records. Nesmith’s license was suspended for six months, the default penalty prescribed by state law.

Less than two weeks later, on April 21, Nesmith appeared in court for violating his probation, according to WebCrims, an online portal provided by the New York State Unified Court System. On April 24, court records say, his license was revoked.

On Friday, April 25, Streetsblog called Thompson’s office to confirm that the information posted on WebCrims was correct and, if so, to find out what Nesmith did to violate his probation. We were told to send an email to Sheila Stainback, Thompson’s communications director. Within half an hour, Stainback replied: “We’ll get back to you.”

Stainback emailed twice more that day. “FYI — you have inaccurate information, as there is no probation violation,” she wrote. The second email read: “I don’t know from where WebCrims receives it’s info, but it’s inaccurate on this matter.” Stainback said she would send us a “formal response” by Monday, April 27.

That response never came. Streetsblog followed up with Stainback by email on May 1, and asked if we should expect answers to our questions. “I do have a response,” Stainback replied. “Swamped right now — is tomorrow okay?” We wrote back that a response the following day would be fine, but Stainback didn’t contact us again.

A convicted drunk driver was sentenced this week to probation, a nominal fine, and a six-month license suspension for killing a Brooklyn pedestrian.

Roxana Gomez

Shortly after midnight on July 5, 2013, 27-year-old Roxana Gomez was walking at Flatbush Avenue and St. Marks Avenue when Eric Nesmith hit her with a BMW sedan, according to witness accounts and the Post. Gomez, a Columbia grad student who worked for the human rights group MADRE, suffered massive head injuries and was administered CPR by an emergency room nurse who lived near the scene. She died on July 10.

The Post reported that Nesmith, then 25, of Newark, had a BAC of .126 — far above the .08 legal limit for driving — and “admitted to cops he had consumed up to six Coronas” while celebrating Independence Day before the crash. FDNY first responders said he was speeding. Yet Nesmith was not charged with homicide by former Brooklyn District Attorney Charles Hynes or his successor Ken Thompson.

“An accident reconstruction expert concluded that alcohol was not a contributing factor in the death of the pedestrian in this case,” a spokesperson for Thompson’s office told Streetsblog in January.

Through a legal aid attorney, Nesmith pled guilty to operating a motor vehicle while intoxicated, an unclassified misdemeanor that carries a maximum sentence of a year in jail, three years probation, and a $1,000 fine. On Tuesday, Judge Raymond Rodriguez sentenced him to three years probation and fined him $500, with no jail time, according to court records.

For killing Roxana Gomez while driving drunk, Eric Nesmith had his license suspended for six months, the default penalty mandated by state law, and six months with an interlock ignition device installed on his car.

Outrageous as it is, the outcome of this case is not at all unusual. New York State law and the courts effectively favor DWI killers. To get a vehicular homicide conviction, prosecutors must prove that impairment caused a motorist to operate a vehicle in a manner that caused death. Due to the vagaries of state code, this burden of proof is often insurmountable, and it is therefore common for NYC prosecutors to decline to bring homicide charges against drunk drivers who kill pedestrians.

A judge sentenced a convicted drunk driver to just 90 days in jail and a six-month license suspension for killing a pedestrian in the Bronx.

Thomas Riley, 23, was crossing East Fordham Road near Bathgate Avenue at around 4:20 a.m. on March 20, 2011, when 48-year-old Seth Johnson struck and killed him with a minivan, according to a Post story published the day after the crash.

Victim Thomas Riley and his son Julien. Photo via Daily News

Riley worked as a barber and had a young son. “My family is now torn apart because a drunk driver took his life away,” Riley’s sister told the Post.

Johnson was charged by Bronx District Attorney Robert Johnson with manslaughter, homicide, speeding, reckless driving, leaving the scene, and separate counts of driving while under the influence of alcohol and drugs. Last December a jury acquitted Johnson of manslaughter, homicide, and leaving the scene, finding him guilty on one count of driving drunk and one count of driving while impaired by drugs and alcohol.

“As a prosecutor, I accept the verdict of the jury,” Bronx vehicular crime chief Joe McCormack told Streetsblog after the trial. “We brought what we felt were appropriate charges, and we did the best we could trying the case.”

Johnson faced a year in jail, but on March 28, Judge Nicholas J. Iacovetta sentenced him to 90 days, three years probation, and $870 in fines, according to court records. His license was suspended for six months. So unless the New York State DMV takes action to keep him off the road, Johnson could driving again before long.

“He will be in jail for less than three months and I have to live with a life sentence,” the victim’s mother, Aurea Rivera, said after Bronx Supreme Court Justice Nicholas Iacovetta read the decision. “I want the laws changed so that no one else has to suffer like us.”

Rivera, joined in the courtroom by nearly a dozen friends and relatives, read a statement before the court and called on Mayor de Blasio and other elected officials to toughen vehicular manslaughter and drunk driving laws.

A jury in the Bronx determined a motorist was impaired by alcohol and drugs when he struck and killed a pedestrian in 2011, but the jury acquitted the driver of manslaughter.

Thomas Riley, 23, was crossing East Fordham Road near Bathgate Avenue at around 4:20 a.m. on March 20, 2011, when he was hit by a minivan driven by 48-year-old Seth Johnson, according to a Post story published the day after the crash.

Riley was a barber who had a young son, the Post reported. “My family is now torn apart because a drunk driver took his life away,” said Riley’s sister.

Court records indicate Johnson was charged by Bronx District Attorney Robert Johnson with manslaughter, homicide, speeding, reckless driving, leaving the scene, and separate counts of driving while under the influence of alcohol and drugs.

The reckless driving and speeding charges were dismissed. Last week a jury found Johnson guilty on one count of driving drunk and one count of driving while impaired by drugs. The jury acquitted on the manslaughter and homicide charges.

“As a prosecutor, I accept the verdict of the jury,” said Bronx vehicular crime chief Joe McCormack. “We brought what we felt were appropriate charges, and we did the best we could trying the case.”

To sustain a charge of vehicular homicide, prosecutors in New York State must be able to prove that impairment caused a motorist to operate a vehicle in a manner that caused death. Given the tendency of courts to side with motorists who kill, even while driving drunk, this is no small feat.

Four months after the death of Thomas Riley, Nassau County pedestrian Eddie Cotto was struck and killed by Robert Core. Though Core reportedly had a blood alcohol level of .17, a judge dismissed a manslaughter charge on the grounds that Cotto was also intoxicated. Core was convicted of DWI and aggravated DWI, and given a maximum sentence of one year.

All three were convicted of murder, and all appealed their convictions on the grounds that they were too impaired to comprehend what they were doing. The court rejected that argument in a 5-2 decision, agreeing with prosecutors that the defendants exhibited a “depraved indifference to human life.”

“Although intoxicated driving cases that present circumstances evincing a depraved indifference to human life are likely to be few and far between,” wrote Chief Judge Jonathan Lippman, “we find that the evidence in each of these unusually egregious cases was legally sufficient to support the convictions.”

Said Nassau County District Attorney Kathleen Rice, whose record on drunk driving cases is recognized nationally: “There are times when this crime is murder, and we have to be willing to call it that when we know it will save lives. Hopefully this ruling will give other prosecutors the legal confidence to push for murder convictions for the worst of the worst drunk drivers.”

Nassau vehicular crimes chief Maureen McCormick prosecuted Heidgen and McPherson, and argued their cases before the Court of Appeals. Streetsblog asked McCormick via email about the significance of the court’s decision.

It appears the Heidgen, McPherson and Taylor rulings were combined, correct? If so, how did this come to be?

The Court of Appeals combined the cases for argument and decision because they each dealt with impaired/intoxicated driving and the application of depraved indifference. The court did not have to reach the same conclusion for each case just because it combined them for argument. They could have distinguished the cases in the decision if they believed they should not all be upheld. In this case they were all upheld.

As a prosecutor, what elevates a DWI fatality case from manslaughter to murder? Do you expect to see more murder prosecutions against drunk drivers, rather than manslaughter?

Depraved indifference cases are intended to be rare under the law. Note the language used to instruct the jury when it is considering a depraved indifference charge: